FAKIRAPPA YELLAPPA KALI v. COMMR. , DHARWAD — 1978 DIGILAW 161 (KAR)

( 1 ) AN important question of law touching the jurisdiction of this Court under art 226 (1) (b) of the Constitution of India to entertain writ petitions against an order of the concerned Returning Officer rejecting or accepting a nomination paper filed in connection with an election to a Taluk Development Board or a village Panchayat under the provisions of the Karnataka Village Panchayats and Local Boards Act, 1959, arises for consideration in these three writ petitions. ( 2 ) IN the first writ petition, the petitioner is aggrieved by the rejection of his nomination paper for election to a Taluk Development Board. In the other two writ petitions, the petitioners are aggrieved by the the acceptance of nominations papers of two candidates for election to a Village Panchayat. The Taluk Development Boards and Village Panchayats in the State are constituted and functioning under the provisions of the Karnataka Village panchayats and Local Boards Act, 1959 (hereinafter referred to as 'the Act' ). The election to the Taluk Development Boards and Village Panchayats is regulated by the common rules called the Karnataka Panchayats and Taluk boards Eleciiou Rules, 1959 (hereinafter referred to as 'the Rules' ). As these three writ petitions raise commons questions of law, they are being disposed of by this common order. ( 3 ) (A) Facts in W. P. 5014 of 1978 : The petitioner filed his nomination paper for election as member of the Taluk Development Board, Hubli Taluk, from Noolvi constituency as against a seat reserved for scheduled castes and scheduled tribes after the calendar of events was published on 10-4-1978 before the prescribed date and time. In the nomination paper, the petitioner mentioned his caste as Kali (Harijan ). According to the petitioner while the word 'harijan' is the colloquial common name, for all the persons belonging to the scheduled castes, the word 'kali, denotes the name of the subgroup to which the petitioner belongs indicating his profession, namely, blowing the trumpet. According to him he belongs to 'madar' caste which is one of the scheduled castes specified in the Constitution (Scheduled Castes) Order, 1950, issued by the President of India under Article 341 of the Constitution. According to him he belongs to 'madar' caste which is one of the scheduled castes specified in the Constitution (Scheduled Castes) Order, 1950, issued by the President of India under Article 341 of the Constitution. As the petitioner had described his caste as 'kali' (Harijan) in the nomination paper, he produced the necessary certificate issued by the Block Development officer in support of his claim that he belongs to 'madar' caste, which is one of the scheduled castes, which consequently entitled him to contest for a seat reserved for the scheduled castes and scheduled tribes in the said constituency. The certificate issued by the Block Development Officer reads as follows:" This is to certify that Fakirappa Kali son of Shri Yallappa of village Warur, Hulgari, Dist. Dharwar in the Karnataka State belongs to the Madar Community which is recognised as a Scheduled Caste under the Scheduled Castes and Scheduled Tribes list (Modification) Order, 1956 read with the Scheduled Castes and Scheduled Tribes Order (Amendment) act, 1956, the Constitution (Jammu and Kashmir) Scheduled Castes Order, 1956, the Constitution (Andaman and Nicobar) Scheduled Tribes Order 1950. Shri F. Y. Kali and his family ordinarily resident (s) in the village varur, Hulgari of the Karnataka State Territory. "in spite of the said certificate, respondent-3, who is one of the candidates who had filed nomination paper in respect of a reserved seat, raised-objection to the nomination paper of the petitioner on the ground that as the caste 'kali' (Harijan) mentioned in the nomination paper is not one of those castes as specified in the Constitution (Scheduled Castes) Order issued by the President, his nomination paper should be rejected. On the other hand, the petitioner submitted before the Returning Officer that though he has mentioned that he belongs to 'kali' (Harijan) which clearly indicates that he belongs to the scheduled caste, in order to satisfy the requirements of law, he also furnished the caste 'certificate issued by the Block Development Officer to show that he belongs to Madar caste, which is one of the castes specified in the Constitution (Scheduled Castes) Order, He, therefore, submitted that the objection of respondent-3 should be rejected. The Returning Officer, however, by his order dated 19-4-1978 (Exhibit-B) rejected the nomination paper of the petitioner on the ground that it is not in keeping with Rule (3) read with Rule 12 (2) (b) of the Rules. The Returning Officer, however, by his order dated 19-4-1978 (Exhibit-B) rejected the nomination paper of the petitioner on the ground that it is not in keeping with Rule (3) read with Rule 12 (2) (b) of the Rules. Aggrieved by the said order, the petitioner has presented the writ petition. (b) Facts in W. PS. 6701 and 6738 of 1978: (i) In W. P. 6701/78, the petitioner is a candidate, who has filed his nomination paper for election from the First Block Constituency of Kadagathur Group Village Panchayat in Madhugiri Taluk in Tumkur District. He raised objection to the nomination of respondents 2 and 3 in the said writ petition on the ground that they were not qualified as they had been removed earlier from the membership of the Village Panchayat on the ground that they were in arrears of taxes due to the Village Panchayat from them. The Returning officer by his orders dated 2-6-1978 (Exhibits B and C) accepted the nomination papers of respondents 2 and 3 on the ground that they had subsequently cleared the arrears before filing the nomination papers. The petitioner is aggrieved by the acceptance of the nomination papers of respondents 2 and 3 in the writ petition. (ii) W. P. 6738/78 also concerns the election to the same Village panchayat. The petitioner in this writ petition, who is a candidate from the third Block constituency of the Village Panchayat raised objection to the nomination papers of respondents 2 and 3 on the ground that both of them were under-aged. The Returning Officer by his orders dated 2-6-1978 (Exhibits B and D) accepted the nomination papers of respondents 2 and 3 and rejected the objection as he was not satisfied about the objection raised by the petitioner. Aggrieved by the orders of the Returning Officer accepting the nomination papers of respondents 2 and 3, the petitioner has presented the writ petition. ( 4 ) I shall first take up W. P. 5014/78 in which the petitioner is aggrieved by the rejection of his nomination paper. Aggrieved by the orders of the Returning Officer accepting the nomination papers of respondents 2 and 3, the petitioner has presented the writ petition. ( 4 ) I shall first take up W. P. 5014/78 in which the petitioner is aggrieved by the rejection of his nomination paper. Sri U. L. Narayana Rao, learned counsel for the petitioner submitted that the impugned order rejecting the nomination paper of the petitioner is liable to be quashed in exercise of the powers of this Court under Art. 226 (1) (b) of the Constitution and consequential relief should be granted In support of this submission, he raised the following contentions : (1) The rejection of the nomination paper of the petitioner is violative of Rule 8 (3) and Rule 12 (3) of the Rules and therefore is illegal ; and (2) The illegal rejection of the nomination paper has resulted in substantial injury to the petitioner. As against the above contentions, Sri B. B. Mandappa learned High Court government Pleader, appearing for respondent-3, submitted as follows : the petitioner has an alternative remedy against the impugned order by way of presenting an election petition under Section 106 of the Act and, therefore, the writ petition under Article 226 (1) (b) of the Constitution is not maintainable in view of clause (3) of Article 226 and the writ petition is liable to be rejected in limine. ( 5 ) I shall now take up for consideration the contentions urged for the petitioner and respondents 1 to 3, respectively. (i) Is the rejection of petitioner's nomination paper illegal ? Rule 8 (3) of the Rules prescribes that a person shall not be deemed to be duly nominated unless his nomination contains a declaration made by him specifying the particular caste or tribe of which he is a member. Rule 12 (3) of the rules provides that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. The case of the petitioner is that specifying his caste as 'harijan' in the nomination paper and production of caste certificate from the Block development Officer was substantial compliance with rule 8 (3) of the rules and, therefore, the rejection was contrary to Rule 12 (3) of the Rules, this question is concluded in favour of the petitioner by two Division bench decisions of this Court. The first is in Suleman v, Ndrasappa, 1959 Mys. L. J. 773 and the second is Kolini Poojari v. Deputy Commissioner, Bellary, (1968) 2 Mys. L. J. 471. The first case arose under the provisions of the Mysore City Municipalities Act and the Election Rules framed thereunder and the second case arose under the act and the Rules with which we are concerned in this case. In both these cases, this Court held that the rejection of nomination of a person belonging to a scheduled caste for a reserved seat on the ground that the mentioning of his caste as 'harijan' in the nomination paper constituted a serious defect in the filling up of the nominatton paper, was illegal and arbitrary. Particularly in Kolini Poojari's case (2) the very Rules, namely rule 8 (3) and Rule 12 (3) of the Rules under which the impugned order is made by the Returning Officer was interpreted by this Court. In both the cases, this Court held that when a person describes himself as a 'harijan' in his nomination paper for election ngainst seats reserved for scheduled castes, what he means is that he belongs to the. scheduled caste and that amounts to a sufficient declaration for purposes required under the Election rules. It was further held that in such a case the Election Officer must investigate, to which particular scheduled caste the candidate belongs and cannot reject the nomination paper. The orders rejecting the nomination on the ground that they had mentioned their caste as 'harijan' was quashed. Therefore in the present case also though the petitioner mentioned his caste as 'harijan' in the nomination paper, it was obligatory for the Returning Officer to investigate as to which particular scheduled caste the petitioner belongs. In this case, the petitioner himself produced the necessary caste certificate issued by the Block Development Officer. In spite of the production of such certificate the Returning Officer rejected the nomination paper. In view of the aforesaid two decisions, the learned counsel appearing for respondents 1 to 3 had nothing to say in defence of the impugned order. Following the said decisions I hold that the impugned order of the Returning Officer is in violation of Rule 8 (3) and Rule 12 (3) of the Rules. (ii) Has the rejection resulted in substantial injury ? Following the said decisions I hold that the impugned order of the Returning Officer is in violation of Rule 8 (3) and Rule 12 (3) of the Rules. (ii) Has the rejection resulted in substantial injury ? The petitioner who belongs to scheduled caste and who fulfills all the qualification for contesting the election to the membership of the Taluk Development Board has a legal right to contest in the election proposed to be held for Noolvi constituency of the Taluk Development Board, Hubli Taluk, having filed his nomination paper in time. Undoubtedly the impugned order of the Returning officer deprives the petitioner of his valuable right to contest in the election and consequently results in a substantial injury to him in violation of Rules 8 (3) and 12 (3) of the Rules framed under the Act. Even on this aspect of this case, learned counsel for respondents 1 to 3 did not contend that the impugned order has not resulted in any substantial injury to the petitioner in violation of the statutory provisions governing the election. Therefore I also uphold the 2nd contention urged for the petitioner. (iii) Does election petition constitute an alternative remedy to the petitioner ? Respondents 1 to 3 who could not resist the case of the petitioner on merits concentrated | their attack on the maintainability of the writ petition. They strenuously urged that this Court has no jurisdiction to entertain the petition in view of the specific bar created by clause (3) of Article 226 of the constitution. In order to appreciate the contention it is necessary to refer to the relevant part of Article 226 of the Constitution, which reads as follows: 226. They strenuously urged that this Court has no jurisdiction to entertain the petition in view of the specific bar created by clause (3) of Article 226 of the constitution. In order to appreciate the contention it is necessary to refer to the relevant part of Article 226 of the Constitution, which reads as follows: 226. (1) Notwithstanding anything contained in Article 32 but subject to the provisions of Article 131 A and Article 226 A, every High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases, any government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them,- (a) for the enforcement of any of the rights conferred by the provisions of Part III, or, (b) for the redress of any injury of a substantial nature by reason of the contravention of any other provision of this Constitution or any provision of any enactment or Ordinance or any order, rule, regulation, bye-law or other instrument made therunder, or, (c) for the redress of any injury by reason of any illegality in any proceedings by or before any authority under any provision referred to in sub- clause (b) where such illegality has resulted in substantial failure of justice. (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3) No petition for the redress of any injury referred to in subclause (b) or sub-clause (c) of clause (1) shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force. Article 226 (1) (b) confers power on the High Courts to issue appropriate writ or order of the redress of any injury of a substantial nature by reason of the contravention of any other provision of the Constitution or any provision of any enactment, or ordinance or any order, rule, regulation, bye-law or other instruments made thereunder. The case of the petitioner squarely falls under Art. 226 (1) (b) of the Constitution. The case of the petitioner squarely falls under Art. 226 (1) (b) of the Constitution. Therefore, the petitioner has a right to present the writ petition praying for the quashing of the impugned order of the Returning officer rejecting his nomination paper and also for the issue of a further direction directing the Returning Officer to accept his nomination paper and to proceed to take the poll. But the objection of the respondents to the maintainability of the writ petition is based on clause (3) of Art. 226. According to the said clause no writ petition for the redress of an injury in sub-clauses (b) and (c) of clause (1) of Art. 226 shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force. The contention of respondents 1 to 3 is that the petitioner has an alternative remedy of presenting an election petition after the election is over as provided under Sec. 106 of the Act. Learned counsel for the petitioner, however, submits that there is no alternative forum created under the Act in which the petitioner can seek the reliefs which he has sought for in this writ petition. Elaborating this point, he submitted that in the writ petition, the petitioner has prayed for quashing the order of the Returning Officer rejecting his nomination paper and also for further consequential direction, namely, a direction to the Returning Officer to accept his nomination paper and to proceed to take the poll including the petitioner as a candidate. He submitted that while this Court under Art. 226 can grant such a relief, the election court constituted under S. 106 of the Act has no such power. ( 6 ) ART. 226 (1) (b) and (c) of the Constitution provides an effective remedy to the citizens aggrieved by the orders of the Government or any authority, which results in substantial injury to them, by the violation of any law or any provisions having the force of law by seeking for the issue of prerogative writs or orders of that nature. 226 (1) (b) and (c) of the Constitution provides an effective remedy to the citizens aggrieved by the orders of the Government or any authority, which results in substantial injury to them, by the violation of any law or any provisions having the force of law by seeking for the issue of prerogative writs or orders of that nature. The object of clause (3) is to see that if any other forum is provided for, in any statutory provision through which the petitioner can secure the same relief, as can be granted under Art. 226, then such an aggrieved person should not be permitted to by-pass that special forum and approach the High Court directly under Art. 226 of the Constitution. If the law does not provide for such an alternative forum wherein the petitioner can seek similar relief, the jurisdictional bar created under Art. 226 (3) does not operate and the citizen cannot be deprived of the right to seek reliefs for his grievance under Art. 226 (1) (b) and (c) of the Constitution. It is a settled principle of interpretation that any special provision which takes away or abridges the jurisdiction of any court which could be exercised but for the ouster of jurisdiction by such special provision should be construed strictly. Therefore, in coming to the conclusion in a given case as to whether a particular court or tribunal, which has got general jurisdiction, is barred by any specific statutory provision which creates a special court or tribunal, the question required to be examined is whether the particular relief is within the jurisdiction of the special court or tribunal so constituted. A similar question was examined by the Supreme Court in cooperative Central Bank Ltd v. Industrial Tribunal, Hyderabad, A. I. R. 1970 SC 245. In the said case the question which came up for consideration before the Supreme Court was whether Section 61 of the Andhra Pradesh Co-operative Societies Act barred the jurisdiction of the Industrial Tribunal to decide the dispute relating to salary, scales and adjustments between a co-operative society and its employees. In the said case the question which came up for consideration before the Supreme Court was whether Section 61 of the Andhra Pradesh Co-operative Societies Act barred the jurisdiction of the Industrial Tribunal to decide the dispute relating to salary, scales and adjustments between a co-operative society and its employees. The supreme Court held that having regard to the power conferred on the registrar under Section 61 of the said Act, the Registrar could not have granted the reliefs claimed by the parties relating to salary, scales and adjustments and, therefore, the Industrial Tribunal had the jurisdiction to decide the said issue, the relevant portion is contained in para 7 at page 251, which reads as follows : applying these tests, we have no doubt at all that the dispute covered by the first issue referred to the Industrial Tribunal in the present cases could not possibly be referred for decision to the Registrar under S. 61 of the Act. The dispute related to alteration of a number of conditions of service of the workmen which relief could only be granted by an Industrial tribunal dealing with an industrial dispute. The Registrar, it is clear from the provisions of the Act, "could not possibly have granted the reliefs claimed under this issue because of the limitations placed on his power in the Act itself, (emphasis supplied ). Therefore, in coming to the conclusion, whether this Court has jurisdiction or not to entertain the writ petition the important aspect for consideration is to see as to what is the relief sought for by the petitioner, and whether the election court or tribunal constituted under the Act has the power to grant the same or substantially the same relief. If the answer is 'yes', then this Court has no jurisdiction to entertain this writ petition. Coming to the present case, the, relief sought for in the writ petition is for quashing the order of the Returning Officer rejecting the nomination paper of the petitioner and for issue of a direction to the Returning Officer to accept the nomination paper of the petitioner and to take the poll including the petitioner as one of the candidates along with other candidates whose nomination papers have already. been accepted. It is not disputed that this Court has the power to give such reliefs under Article 226 (1) (b) of the Constitution. been accepted. It is not disputed that this Court has the power to give such reliefs under Article 226 (1) (b) of the Constitution. This takes me to the question as to whether the election tribunal constituted under the Act has the power to give this relief in an election petition to the petitioner which could be presented by him after the election is over. The section which provides for presenting of an election petition in respect of elections to a Taluk Development board is Section 106 of the Act. The relevant portion of the said section reads as follows:"106-Determination of the validity of Elections. (1) At any time within fifteen days after the declaration of the result of an election, any candidate who stood for election or any person qualified to vote at that election, may apply, together with a deposit of one hundred rupees as security for costs, to the Munsiff having jurisdiction in the taluk concerned for the determination of the validity of the election. (2) The Munsiff shall after such enquiry as he deems necessary, pass an order confirming or amending the declared result of the election, or setting aside the election. For the purposes of the said enquiry, the munsiff may exercise any of the powers of a civil court. He may also award costs in such manner as he may deem fit and such costs shall be recoverable as if they had been awarded in a suit under the Code of Civil procedure, 1908, (Central Act V of 1908 ). If he sets aside an election, he shall forthwith communicate the fact to the Deputy Commissioner who shall take the necessary steps for holding a fresh election. (3) Subject to the provisions of sub-section (2), (A) if the Munsiff is of opinion, (a) (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c) that any nomination has been improperly rejected; or. (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected. (i) by the improper acceptance of any nomination or. (ii) ("0 (iv ). . . . . . . . . . . . . . . . . . . . . . . . . (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected. (i) by the improper acceptance of any nomination or. (ii) ("0 (iv ). . . . . . . . . . . . . . . . . . . . . . . . . the Munsiff shall declare the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. ". . . . . . . . . . . . . . . . . . . . . "from the wordings of the above provision, it is plain and it is also not disputed by the learned counsel for respondents 1 to 3 that the only relief that can be given by the election tribunal constituted under s 106 of the Act, in the event of coming to the conclusion that any nomination paper has been improperly rejected, is to set aside the election of all the returned candidates in respect of the concerned constituency and communicate the said decision to the Deputy commissioner, who is required to take necessary steps for holding a fresh election. Therefore the result of the success in an election petition presented by a candidate, whose nomination paper had been illegally rejected, is the setting aside of the election and the holding of a fresh election. A fresh calendar of events has to be issued. Fresh nominations have to be called for and a fresh poll has to be taken. Under s 106 of the Act, even after coming to the conclusion that the nomination paper of a candidate was illegally rejected, the election court has no power to direct the Returning Officer to accept the nomination paper which was illegally rejected and to take a fresh poll only with the candidates who were already in the field. This position is also not controverted on behalf of respondents 1 to 3. Therefore, it is clear that Section 106 of the Act gives no remedy to the petitioner to have a fresh poll on the basis of the nomination paper which is found to be illegally rejected along with the other candidates who were contesting at the election which is set aside. Therefore, it is clear that Section 106 of the Act gives no remedy to the petitioner to have a fresh poll on the basis of the nomination paper which is found to be illegally rejected along with the other candidates who were contesting at the election which is set aside. The right to contest on the basis of the nomination of which the candidate was deprived by the illegal rejection by the Returning officer is lost for ever. Holding of a fresh election by the issue of a fresh calendar of events is not the same thing as the restoration of the right which the petitioner is seeking in this writ petition by praying for the quashing of the impugned order of the Returning Officer and for a further direction to the returning Officer to accept the petitioner's nomination and to take the poll. If the statute had provided a pre-election remedy to challenge the illegal rejection of a nomination paper before any prescribed authority on whom the power is conferred to set aside an order illegally rejecting the nomination paper and to give direction to the Returning Officer to accept that nomination paper and proceed to take the poll, it would have been the same as could be granted in a writ petition. Even if the pre-election remedy was not considered expedient, if at least the statute had conferred the power on the election court that in cases where it comes to the conclusion that any nomination paper was illegally rejected, not only to pass an order setting aside an election but also to direct the Returning Officer to accept the very nomination paper which was rejected and to hold a fresh poll along with only the other candidates, who were already in the field, such a remedy would in substance be the same as could be granted under Article 226 of the Constitution, though postponed to a post-election period. In both cases, such a provision would have attracted the jurisdictional bar created by clause (3) of Article 226 of the Constitution. In this behalf it is necessary to point out the words 'such remedy' used in Article 22. 6 (3) of the Constitution. In both cases, such a provision would have attracted the jurisdictional bar created by clause (3) of Article 226 of the Constitution. In this behalf it is necessary to point out the words 'such remedy' used in Article 22. 6 (3) of the Constitution. It is only where the Court comes to the conclusion that there is an alternative forum in which the petitioner can seek such remedy which he has sought for in the writ petition, the jurisdiction of the High Court stands excluded by operation of clause (3) of Article 226 of the Constitution. In the present case, as already pointed out, the election court is pot invested with the power to grant the relief which the petitioner has sought for and which can be granted in the writ petition. ( 7 ) RESPONDENTS 1 to 3, however, relied on some of the decisions in support of their contention. They relied on the decision of the Supreme Court in nanhoo Mal V. Hira Mal, AIR 1975 SC. 2140 . The said appeal arose out of a decision rendered by the Allahabad High Court in a writ petition under Article 226 of the constitution, as it stood before its amendment by the Constitution (Forty-second amendment) Act, 1976. In that writ petition the calendar of events issued in connection with the election to the office of the President of a Municipal Board was challenged. As no stay order was granted by the High Court, the election took place and the appellant before the Supreme Court was declared elected. The election was set aside in the writ petition. The Supreme Court allowed the appeal. Referring to an alternative remedy provided under the Act and Rules for challenging the election of the President, the Supreme Court observed that the high Court was wrong in setting aside the election and should have allowed the parties to resort to the remedy by way of an election petition. The relevant observations on which respondents 1 to 3 relied are contained in para 5 of the judgment which reads as follows :"it follows that the right to vote or stand for,election to the office of the president of the Municipal Board is a creature of the Statute, that is, theu. P. Municipalities Act and it must be subject to the limitations imposed by it. P. Municipalities Act and it must be subject to the limitations imposed by it. Therefore, the election to the office of the President could be challenged only according to the procedure prescribed by that Act and that is by means of an election petition presented in accordance with the provisions of the Act and in no other way. The Act provides only for one remedy, that remedy being an elec'ion petition to be presented after the election is over and there is no remedy provided at any intermediate stage. These conclusions follow from the decision of this Court in Ponnuswami's case ( AIR 1952 SC 64 j (supra) in its application to the facts of this case. But the conclusions above stated were arrived at without taking the provisions of Art. 329 into account. The provisions of Art. 329 are relevant only to the extent that even the remedy under Article 226 of the Constitution is barred as a result of the provisions. But once the legal effect above set forth of the provision of law which we are concerned with is taken into account there is no room for the High Courts to interfere in exercise of their powers under Article 226 of the Constitution. Whether there can be any extraordinary circumstances in which the High Courts could exercise their power under Article 226 in relation to elections, it is not now necessary to consider. All the considerations applied in coming to the conclusion that elections to the legislatures should not be delayed or protracted by the interference of Courts at any intermediate stage before the results of the election are over apply with equal force to elections to local bodies. "the earlier part of the observations of the Supreme Court no doubt support the contention of respondents 1 to 3 to the effect that the High Courts should not inteifere with, or set aside, the elections in exercise of their powers under article 226 of the Constitution. But on a careful reading of the above para, it is clear that the said observations were made in a case where the High Court had set aside the election after it was held without directing the parties to resort to an election petition provided under the statute. But on a careful reading of the above para, it is clear that the said observations were made in a case where the High Court had set aside the election after it was held without directing the parties to resort to an election petition provided under the statute. As regards the bar of the High Court under Article 226 of the Constitution to entertain a writ petition in extraordinary circumstances, in the same para the Supreme Court has expressly left the said question open. The penultimate sentence in para 5 aforesaid reads as follows:" Whether there can be any extraordinary circumstances in which the high Courts could exercise their power under Article 226 in relation to elections it is not now necessary to consider. "this Court has consistently taken the view that once the election is over, the only proper and effective remedy for challenging the election is by means of an election petition. As regards cases of improper acceptance of nomination papers also this Court has consistently refused to entertain writ petitions on the ground that it causes no injury to a petitioner who complains of such illegal acceptance of nomination papers and also on the ground the remedy provided under the Act is an alternative and efficacious remedy. Further, this Court has always treated cases of rejection of nomination papers by patently illegal orders as cases of extraordinary nature which results in irreparable injury to a person whose nomination paper has been rejected. ( 8 ) AFTER considering the judgment of the Supreme Court in the case of n. P. Ponnuswami v. The Returning Officer, AIR 1952 SC 64 which is referred to in the aforesaid Supreme Court judgment, this Court in Muddamallappa v. Election officer and Revenue Inspector, 1961 Mys. LJ. 319 took the view that cases of illegal rejection of nomination papers call for interference in exercise of the extraordinary jurisdiction of this Court under Article 226 of the Contitution. The relevant portion is at page 325 which reads as follows :" The principle that there should be no interruption of an election while it is in progress and that no attack should be made on the validity of any proceeding relating to such election until its completion, is, as I understand it, a sound principle of election law which, ordinarily, justifies the refusal of the exercise of such jurisdiction. But to say that, is not the same thing as saying that even in a case where the impugned order of an election Officer is so plainly absurd or where the order made by him cannot but be regarded as one which it was impossible for him to make under the statutory provisions under which he was functioning, we should, nevertheless, even in such a case, decline to exercise our jurisdiction. In cases falling within that exceptional category, it is clear that it would be our plain duty to correct at the earliest stage such egregious errors which, if the election is allowed to continue unimpeded, would inevitably result in wasteful expenditure of public time and money. "on the same basis, this Court has always entertained writ petitions under article 226 of the Constitution and interfered with the illegal rejection of nomination papers in connection with the elections to the local bodies. The other decisions are Lakshminarayana Rao v. Deputy Commissioner, 1964 (2) My. LJ. 438. D. R. Linge Gowda v. State of Mysore, 1969 (1) Mys. LJ. 94. Ramaiah v. State of Mysore, 17 LR 528. Rajanna v. Election Officer, Doddaballapur, 17 LR 598 and P. Nagaraju v. Thasildar and Returning officer, 11 L. R. 461. In view of the series of Division Bench decisions of this Court in which it is held that cases of rejection of nomination papers in plain contravention of the statutory provisions are cases which fall under the category of extraordinary cases which calls for interference under Article 226 of the Constitution, and this question was specifically left open by the Supreme Court in nanhoomal's Case (4) on which respondents I to 3 relied ; therefore I do not agree with the submission made on behalf of respondents 1 to 3 that in view of the aforesaid Supreme Court judgment the petition cannot be entertained. ( 9 ) RESPONDENTS 1 to 3 next relied on the decision of the Supreme Court in Mohinder Singh v. Chief Election Commissioner, AIR 1978 SC 851 . ( 9 ) RESPONDENTS 1 to 3 next relied on the decision of the Supreme Court in Mohinder Singh v. Chief Election Commissioner, AIR 1978 SC 851 . Para 91 (3) at page 886 on which they relied reads as follows :" The conspectus of provisions bearing on the subject of elections clearly expresses the rule that there is a remedy for every wrong done during the election in progress although it is postponed to the post election stage and procedure as predicated in Article 329 (b) and 1951 Act. The election Tribunal has, under the various provisions of the Act, large enough powers to give relief to an injured candidate if he makes out a case and such processtsal amplitude of power extends to directions to the Election commission or other appropriate agency to hold a poll, to bring up the ballots or do other things necessary for fulfilment of the jurisdiction to undo illegality and injustice and do complete justice within the parameters set by the existing law. "in the above para the Supreme Court has observed that the election tribunal constituted under the Representation of People Act has large enough powers to give relief to an injured candidate including the giving of direction to the election Commission or appropriate agency to hold a poll or do other things necessary for fulfilment of the jurisdiction to undo illegality and injustice and do complete justice within the para-meters set by the existing law. As already pointed out Sec. 106 of the Act with which we are concerned in this case does not confer power on the election Court to direct a fresh poll, on the basis of earlier calendar of events even in the event of the election court coming to the conclusion that the rejection of nomination paper was illegal, and there can only be a fresh election. Under Sec. 106 of the Act the petitioner cannot secure the reliefs which he can secure in a petition under Article 226 of the constitution. Therefore the aforesaid observations of the Supreme Court are not helpful to the petitioner. Unlike the election to the Village Panchayats and Taluk Development Boards under the Act, the election for the State legislature or Parliament stands entirely on a different footing. Therefore the aforesaid observations of the Supreme Court are not helpful to the petitioner. Unlike the election to the Village Panchayats and Taluk Development Boards under the Act, the election for the State legislature or Parliament stands entirely on a different footing. The administration of the entire election process to the State Legislatures and Parliament is entrusted to an independent commission constituted under Article 324 of the constitution. Article 329 of the Constitution prohibits any and every kind of pre-election challenge including the delimitation of constituencies or post-election challenge against any step taken in connection with those elections except the method of challenge permitted by means of an election petition which can be filed only after the elections. Therefore there can be no similarity in all respects between the election to the State Legislature and the Parliament entrusted to the Election Commission and to the elections to local authorities under the act. It is obviously for this reason as noticed earlier, the question of the exercise of power by the High Court in extraordinary cases in the pre-election period in connection with the election to local authorities was specifically left open by the Supreme Court in Nanhoomal's case (4 ). Further in the case of State of Karnataka v. G. Nagappa, AIR 1975 SC 1708 the Supreme Court confirmed the judgment in W. P. 48 of 1975 of this Court quashing an order of the State Government cancelling the calender of events issued for election to Gangavati Town municipal Council and directing the Returning Officer to proceed to hold the election from the stage at which it was interrupted by the Government Order. From the aforesaid decision it is clear that it is open for this Court to entertain a writ petition under Article 226 (1) (b) of the Constitution challenging the cancellation of calendar of events on the ground that such order contravenes the provisions of the Act, as the same cannot be questioned in an election petition. From the aforesaid decision it is clear that it is open for this Court to entertain a writ petition under Article 226 (1) (b) of the Constitution challenging the cancellation of calendar of events on the ground that such order contravenes the provisions of the Act, as the same cannot be questioned in an election petition. Similarly a writ petition praying for quashing of an order notifying the delimitation of constituencies under the Act and for a further direction to reconstitute the constituencies in accordance with the Act or a writ petition challenging the order of rejection of nomination paper and praying for quashing the order and for a further direction to the Returning Officer to accept the nomination paper and to take the poll is also maintainable under Article 226 (1) (b) of the Constitution as the election court is not empowered to give such reliefs. These types of cases where the orders of authorities under the Act are patently illegal and the relief prayed for in the writ petition cannot be granted by the election court, can be considered as extraordinary cases. Respondents 1 to. 3 next relied on the decision of this Court in Shiraguppi v. Deputy Superintendent of Police, 1977 (2) Kar. LJ. 255. In the said decision this Court held that a writ petition by a police officer for quashing an order passed against him in disciplinary proceedings was maintainable, although under Section 25 (2) of the police Act such an aggrieved person could approach the Government with a revision petition. It was held that the powers of revision exercised by the state Government was discretionary and therefore the remedy cannot be considersd as a remedy available as of right. While holding that the powers of revision exercised by the State Government are discretionary, this Court held that the remedy cannot be said to be either effective or claimed by the aggrieved person as of right. Respondents 1 to 3 relied on the latter portion of the observations of this Court and submitted that as an election petition can be presented by the petitioner before the election court as of right, the writ petition is not maintainable in view of clause (3) of Article 226 of the Constituiion. In making this submission obviously learned counsel for respondents 1 to 3 have not appreciated the case of the petitioner. In making this submission obviously learned counsel for respondents 1 to 3 have not appreciated the case of the petitioner. It is not the case of the petitioner that he has no right to present an election petition in the election court. But his case is that even by the exercise of that right, he cannot seek at the hands of the election court the same reliefs which he is seeking in the writ petition. Therefore the above decision also does not in any way help to substantiate the contention of respondents 1 to 3. They next relied on the decision of the patna High Court in Ranchi Club v. State of Bihar, AIR 1978 Pat 32 . . The relevant portion on which they relied reads as follows :" Apart from this, I think it is worthwhile to bear in mind that the provision in Article 226 (3) being a provision in exclusion of the jurisdiction has to be construed strictissimi juris. The relevant enquiry for the purpose of such exclusion should be whether the enactment under which an order is made has provided a remedy equivalent to or amounting to a substantive right for the person aggrieved to have the locus standi at a prescribed forum and to be heard there as a matter of right. "i do not see anything in the above judgment which supports the contention urged on behalf of respondents 1 to 3. The learned Judges of the Patna High court have held that clause (3) of Art. 226 of the Constitution being a provision in exclusion of the jurisdiction has to be construed strictly. They have also observed that the relevant enquiry for the purpose of exclusion of the jurisdiction is to find out whether the remedy on the basis of which the bar of jurisdiction is pleaded is an equivalent remedy. I am in respectful agreement with the view expressed by their Lordships of the Patna High Court. Applying this very test, respondents 1 to 3 were not able to substantiate that the remedy provided under Section 106 of the Act is equivalent to the relief that is prayed for in the writ petition. I am in respectful agreement with the view expressed by their Lordships of the Patna High Court. Applying this very test, respondents 1 to 3 were not able to substantiate that the remedy provided under Section 106 of the Act is equivalent to the relief that is prayed for in the writ petition. ( 10 ) IN the light of the above discussion, my conclusion is that the election court constituted under Section 106 of the Act has no power or jurisdiction to grant the reliefs sought for by the petitioner in this writ petition and therefore the bar created by clause (3) of Article 226 of the Constitution" does not operate and the writ petition is maintainable. ( 11 ) W. Ps. 6701 and 6738 of 1977-In these two writ petitions : the petitioners, who are candidates at an election to a Village Panchayat, complain that the nomination papers of respondents 2 and 3 in these writ petitions have been improperly accepted by the Returning Officer. Sri P. Krishnappa, learned counsel appearing for the petitioners, submitted that these two writ petitions are also maintainable as in the case of the petition in W. P. 5014/78. Sri B. B. Mandappa, learned High Court Government Pleader, who was directed to take notice on behalf of respondent -1, at the stage of preliminary hearing itself took notice on behalf of respondent-1 and submitted that whatever may be the view that may be taken as to the maintainability of W. P. 5014/78, these two writ petitions are not maintainable. He submitted that by the acceptance of nomination paper of another candidate or candidates, the petitioners suffer no substantial injury and further the remedy provided under Section 13 of the act which is exactly similar to Section 106 of the Act provides an effective alternative remedy in case of improper acceptance of nomination papers. ( 12 ) AS submitted by the learned High Court Government Pleader, the question for consideration is, does the illegal acceptance of nomination constitute substantial injury ? The case of the petitioner, who complains that his nomination paper at an election to a Village Panchayat or Taluk Development board has been rejected, is entirely different from that of a petitioner, who complains that the nomination paper of another person is wrongly accepted. The case of the petitioner, who complains that his nomination paper at an election to a Village Panchayat or Taluk Development board has been rejected, is entirely different from that of a petitioner, who complains that the nomination paper of another person is wrongly accepted. In the former case, the illegal rejection immediately results in a substantial injury to the petitioner, for the redress of which he can seek relief under Article 226 (1) (b) of the Constitution. In the latter case, where the petitioner complains that a nomination paper has been improperly accepted, no substantial injury is caused to the petitioner by the mere acceptance of the nomination paper of another person. Whether the acceptance of nomination paper of another person results in any substantial injury to the petitioner or not, entirely depends upon the future events, namely, the number of votes such a candidate secures at the election and also as to what extent the result of the election stands materially affected. For instance, if the petitioners are elected, they suffer no injury by the alleged improper acceptance of the nomination paper of other candidates. Similarly, if the petitioners as well as the persons whose nomination papers have been improperly accepted aie defeated and if the margin of votes between the petitioners and the successful candidate show that even if the votes secured by the candidates whose nomination papers had been improperly accepted is added to the petitioners, they had no chance of being elected, the petitioners suffer no injury. It is only when the petitioners are defeated and they prove that the result of the election was materially affected by the improper acceptance of nomination of others, it can be said that such improper acceptance resulted in substantial injury. Therefore at this stage the petitioners cannot make out that the improper acceptance of the nomination of respondents 2 and 3, assuming it to be illegal, has resulted in any substantial injury, which alone can be the foundation for a petition under Article 226 (1) (b) of the Constitution. Therefore at this stage the petitioners cannot make out that the improper acceptance of the nomination of respondents 2 and 3, assuming it to be illegal, has resulted in any substantial injury, which alone can be the foundation for a petition under Article 226 (1) (b) of the Constitution. Therefore, i uphold the preliminary objection raised by the learned High Court Government pleader that the petitioners in these writ petitions have not made out that they have suffered any substantial injury at this stage by the acceptance of nomination papers of respondents 2 and 3, and consequently the writ petitions are not maintainable under Article 226 (1) (b) of the Constitution. ( 13 ) IN view of my conclusions as above, it is unnecessary to examine whether the alternative remedy provided under Section 13 of the Act is an equivalent or alternative remedy. However, I may observe that there is force in the submission made by the High Court Government Pleader to the effect that the remedy by way of an election petition provided under Section 13 of the Act is a substantial remedy provided to the petitioners. As already pointed out, if the petitioners are elected, they suffer no injury by the acceptance of nomination papers, of respondents 2 and 3 and, therefore, there is no question of their seeking any renredy under Section 13 of the Act. If for any reason, they are defeated at the election, they can present election petitions and if in the election petitions they prove that but for the acceptance of the nomination papers of respondents 2 and 3 they would have been elected, the election court is given the power to declare the election-petitioners as elected in place of candidates declared elected by the Returning Officer. Thus unlike the position of the petitioner in W. P. 5014/78, whose nomination paper is rejected, the petitioners in W. Ps. 6701 and 6738 of 1978 whose nominations have been accepted and who complain about the improper acceptance of the nominations of respondents 2 and 3 in these petitions have an alternative remedy given to them under Section 13 of the act. 6701 and 6738 of 1978 whose nominations have been accepted and who complain about the improper acceptance of the nominations of respondents 2 and 3 in these petitions have an alternative remedy given to them under Section 13 of the act. Even if they are defeated, they can seek a declaration from the election court in an election petition filed under Sectioa 13 of the Act that the nomination papers of respondents 2 and 3 were improperly accepted and also a further declaration that they are elected, if they prove that the result of the election was materially affected by such improper acceptance. Therefore the remedy provided to them under Section 13 of the Act constitutes an equivalent alternative remedy. ( 14 ) FOR the reasons stated above, I make the following order : (i) In W. P. 5014 of 1978 : Rule is made absolute. The impugned order of the 2nd respondent dated 19-4-1978 (Ex B) rejecting the nomination paper of the petitioner for election to the Taluk Development Board. Hubli Taluk, from noolvi constituency is quashed. The 2nd respondent is directed to accept the nomination paper of the petitioner and proceed to continue the election from the stage at which it was interrupted by the interim orders of this Court staying the election from the said constituency. (ii) in W. Ps. 6701 and 6738 of 1978: The writ petitions are hereby dismissed. (Hi) No costs. Sri B. B. Mandappa learned High Court Government Pleader is permitted to file memo of appearance in two weeks. --- *** --- .